International Olympic Committee (IOC) v. Chijindu Ujah

V. JURISDICTION

50. The “Introduction” to the ADR sets out the scope of the application of the ADR and states (in respect of the category of athletes that:

“These Rules apply in relation to the Olympic Games Tokyo 2020. They shall, without limitation, apply to all Anti-Doping Activities and Doping Controls over which the IOC has jurisdiction in relation to the Olympic Games Tokyo 2020.

These Rules shall, without limitation, apply to … (b) all Athletes entered in the Olympic Games Tokyo 2020 or who have otherwise been made subject to the authority of the IOC in connection with the Olympic Games Tokyo 2020 (see below); … Athletes entered in the Olympic Games Tokyo 2020 or who have otherwise been made subject to the authority of the IOC in connection with the Olympic Games Tokyo 2020 are bound by these Rules as a condition of eligibility to participate in the Olympic Games Tokyo 2020 …”.

51. In addition, Article 8.1 of the ADR provides for the jurisdiction of the CAS ADD and the application of the CAS ADD:

“8.1.1 Where the ITA decides to assert an anti-doping rule violation, the ITA shall promptly file an application with the CAS Anti-Doping Division, acting as first-instance authority to conduct proceedings and to issue decisions, as per the CAS Anti-Doping Division Arbitration Rules. The application shall be filed in the name of the IOC by the ITA acting on the IOC’s behalf. A copy of such application (which shall be deemed as the notice of charge as defined in the International Standard for Results Management) will be provided to the Athlete, the Athlete’s NOC, the Athlete’s International Federation, the relevant National Anti-Doping Organisation of the Athlete, the IOC and WADA.

8.1.2 The composition of the hearing panel and procedures applicable to the CAS Anti-Doping Division shall be as per the CAS Anti-Doping Division Arbitration Rules”.

52. Further Rule A1 of the Arbitration Rules of the CAS ADD (the “ADD Rules”) provides:

“The Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) has been established to hear and decide anti-doping cases as a first-instance authority pursuant to a delegation of powers from the International Olympic Committee (IOC), International Federations of sports on the Olympic programme (Olympic IFs), and any other signatories to the World Anti-Doping Code (WADC). These WADC signatories have delegated their powers to CAS ADD to decide whether or not there has been a violation of their anti-doping rules, as well

as to decide any sanction, if applicable, in accordance with the WADC. CAS ADD and these procedural rules have been established in conjunction with the applicable anti-doping rules of the WADC signatories concerned”.

Rule A2 of the Arbitration Rules provides:

“CAS ADD shall be the first-instance authority to conduct proceedings and issue decisions when an alleged anti-doping rule violation has been filed with it and for imposition of any sanctions resulting from a finding that an anti-doping rule violation has occurred. CAS ADD has jurisdiction to rule as a first-instance authority on behalf of any WADC signatory which has formally delegated its powers to CAS ADD to conduct anti-doping proceedings and impose applicable sanctions. These Rules apply whenever a case is filed with CAS ADD. Such filing may arise by reason of an arbitration clause in the Anti-Doping Rules of a WADC signatory, by contract or by specific agreement”.

53. As a condition of participation in the Tokyo Olympics, the Athlete had to abide by the ADR. He submitted to testing on 6 August 2021 and as part of that process signed the Doping Control Form which provides for the jurisdiction of the CAS ADD to deal with any potential ADRV’s:

“The ITA will in particular initiate and undertake testing activities on the occasion of the Games, determine whether or not a potential anti-doping rule violation has occurred pursuant to the Rules, and if so, file the case with the Court of Arbitration for Sport for decision”.

54. The jurisdiction of the CAS ADD is not contested by the Athlete; indeed, it is overtly accepted.

55. The IOC relies on ADR Article 8.1.1 as conferring jurisdiction on the CAS ADD and the ADD Rules make provision for receipt of a referred arbitration by the CAS ADD by inter alia the IOC.

56. Article 8.2.1 ADR provides for the powers of the CAS ADD:

“8.2.1 In all procedures relating to any alleged anti-doping rule violation pursuant to these Rules, the right of any Person to be heard pursuant to paragraph 3 to the Bye-law to Rule 59 of the Olympic Charter will be exercised solely before the CAS Anti-Doping Division. Pursuant to Rule 59.2.4 of the Olympic Charter, the IOC Executive Board delegates to the CAS Anti-Doping Division all powers which are necessary for it to take the measures and sanctions envisaged by these Rules including, in particular, Articles 9, 10.1, 10.2 and 11 …”.

57. On the basis of the above, the Sole Arbitrator determines that the CAS ADD has jurisdiction to hear and determine this matter.

58. The scope of the jurisdiction of the CAS ADD with regard to the Tokyo Olympics is not however unlimited. In accordance Articles 10.2.2, 7.9 and 7.1.2 of the ADR, “completion of the Results Management in the case in terms of sanctions beyond the Olympic Games Tokyo 2020 itself shall be referred to the applicable International Federation”. Therefore, World Athletics will be responsible for the management of any Consequences of the ADRV beyond the Olympic Games.

VI. APPLICABLE LAW

59. In accordance with Article A20 of the Rules, the Sole Arbitrator shall decide the dispute “… according to the applicable ADR or the laws of a particular jurisdiction chosen by agreement of the parties or, in the absence of such a choice, according to Swiss law”.

60. The ADR provides at Article 5.2 that the IOC has authority over anti-doping testing at the Tokyo Olympics and consistent with the delegation of its authority to conduct Testing to the ITA, the ITA does so on behalf of the IOC:

“5.2.1 In accordance with Article 5.2.3 of the Code, the IOC shall have In-Competition and Out-of- Competition Testing authority over all Athletes in connection with the Olympic Games Tokyo 2020.

5.2.2 Accordingly, the ITA may conduct In-Competition and Out-of-Competition Testing on the IOC’s behalf, on any Athlete entered to or who may be entered to participate in the Olympic Games Tokyo 2020. The ITA may notably conduct Out-of-Competition Testing on these Athletes starting from the Period of the Pre-Olympic Games Tokyo 2020.

5.2.3 The ITA may require any Athlete over whom the IOC has Testing authority to provide a Sample at any time and at any place”.

61. Accordingly, the Sole Arbitrator determines that the applicable ADR are the IOC Anti-Doping Rules of the Tokyo Olympic Games 2020 which provide in Article 18.2 for the application of Swiss law and the Olympic Charter.

VII. MERITS

62. Article 2.1 of the ADR sets out that the presence of a Prohibited Substance shall constitutes an ADRV:

“The following constitute anti-doping rule violations:

2.1 Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample

2.1.1 It is the Athletes’ personal duty to ensure that no Prohibited Substance enters their bodies. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, Fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation under Article 2.1”.

63. It is sufficient proof of an ADRV under Article 2.1 ADR inter alia if the presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample is confirmed by the presence in the Athlete’s B Sample of the same Prohibited Substance or its Metabolites or Markers.

64. Article 3.1 of the ADR provides that the burden is upon the IOC to establish to the comfortable satisfaction of the Sole Arbitrator that an ADRV has occurred:

“The IOC (or the ITA acting before the hearing panel on behalf of the IOC as set forth in Article 8.1.1 of these Rules) shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the IOC has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probabilities but less than proof beyond a reasonable doubt. Where these Rules place the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, except as provided in Articles 3.2.2 and 3.2.3 of these Rules, the standard of proof shall be by a balance of probabilities”.

65. Facts relating to an ADRV may be established by any reliable means in accordance with Article 3.2 ADR including by admissions.

66. The Athlete does not challenge the ADRV under Article 2.1 ADR for the Presence of the Prohibited Substances. He accepts the results of the Sample testing which have been provided in relation to his ‘A’ and ‘B’ Samples, and that the Prohibited Substances enobosarm (ostarine) and S-23 were found in those Samples. Accordingly, on the basis of the evidence submitted by the IOC, the Sole Arbitrator determines that the IOC has demonstrated to her comfortable satisfaction that an ADRV has been committed by the Athlete contrary to ADR Article 2.1.

67. It is for the Sole Arbitrator to consider now what consequences should apply to the Athlete within the context of the CAS ADD jurisdiction under the ADR.

VIII. CONSEQUENCES

(i) For the 4 x 100m Sprint Relay Final – the Athlete

68. The Athlete was a member of the 4 x 100m sprint relay team for Great Britain at the Tokyo Olympics, following which Competition an AAF was found in his Sample and he has been determined to have committed and ADRV contrary to Article 2.1 ADR.

69. In assessing the Consequences applicable to the Athlete’s ADRV, which is for an Individual Sport (being any sport that is not a Team Sport), Article 9 of the ADR provides:

“An anti-doping rule violation in Individual Sports in connection with an In-Competition test automatically leads to Disqualification of the result obtained in that Competition with all resulting Consequences, including forfeiture of any medals, diplomas, points and prizes” (emphasis added).

70. Consequently, the Athlete is subject to the automatic Disqualification of the result obtained by him in the Final of the 4 x 100m sprint relay, with all resulting Consequences including forfeiture of any medals, points and prizes including the Silver Medal won in that Final.

(ii) For the 4 x 100m Sprint Relay Final – the other members of the relay team

71. The situation with regard to the impact of the Disqualification of the Athlete’s results in the sprint relay Final on his fellow relay team members also requires addressing. In this regard, it is

also notable that the Athlete himself “accepts, as a result of Articles 9 and 11 of the IOC ADR, that his and his team-mates’ results in the 4 x 100 metre relay event (the “relevant Competition”) will automatically be disqualified”.

72. As defined in the ADR a “Team Sport” is “A sport in which the substitution of players is permitted during a Competition”, thus the relay team falls outside of that definition. However, Article 11.3 ADR provides for situations where members of a team in a sport which is not a Team Sport but where awards are given to teams and an ADRV arises during the Tokyo Olympic Period, then in such cases; “the CAS Anti-Doping Division shall apply the rules of the relevant International Federation to determine the Consequences on the team (e.g., loss of points, Disqualification from a Competition, Event or the Olympic Games Tokyo 2020, or other Consequences), in addition to any Consequences imposed pursuant to these Rules on the individual Athlete(s) found to have committed the anti-doping rule violation”.

73. The rules of World Athletics (being the relevant International Federation of the Athlete) provide at Article 11.1 of the World Athletics Anti-Doping Rules 2021 (“WA ADR”) for consequences for relay teams as follows:

“11.1 Where the Athlete who has committed an anti-doping rule violation competed as a member of a relay team, the relay team shall be automatically Disqualified from the Event in question, with all resulting consequences for the relay team, including the forfeiture of all titles, awards, medals, points and prize and appearance money. If the Athlete who has committed an antidoping rule violation competes for a relay team in a subsequent Event in the Competition, the relay team shall be Disqualified from the subsequent Event, with all the same resulting consequences for the relay team, including the forfeiture of all titles, awards, medals, points and prize money unless the Athlete establishes that they bear No Fault or Negligence for the violation and that their participation in the relay was not likely to have been affected by the anti-doping rule violation” (emphasis added).

74. The terms of Article 11.1 WA ADR are clear and mandatory in nature. As a consequence of the Athlete’s ADRV the relay team is hereby automatically Disqualified from the Tokyo Olympics with all resulting consequences including forfeiture of any titles, awards, medals, points and prize money, which will include the forfeiture of the Silver Medal won in the 4 x 100m sprint relay Final.

(iii) For the Athlete’s other Results

75. A matter which is in contention between the IOC and the Athlete relates to the impact of the Athlete’s ADRV in relation to the other results he obtained at the Tokyo Olympics. This was the subject of a discrete additional round of submissions in this case.

76. An assessment of the scope and impact of Article 10.1 is relevant and appropriate as it is the source of the Sole Arbitrator’s discretion in relation to the Disqualification or otherwise of other results obtained by an athlete who committed and ADRV at the Tokyo Olympics. It provides:

“10.1.1 An anti-doping rule violation occurring during or in connection with the Olympic Games Tokyo 2020 may, pursuant to the decision of the CAS Anti-Doping Division, lead to Disqualification of all of the Athlete's

individual results obtained in the Olympic Games Tokyo 2020 with all Consequences, including forfeiture of all medals, diplomas, points and prizes, except as provided in Article 10.1.2.

Factors to be included in considering whether to Disqualify other results in the Olympic Games Tokyo 2020 may include, for example, the seriousness of the Athlete’s anti-doping rule violation and whether the Athlete tested negative in other Competitions.

10.1.2 If the Athlete establishes that he/she bears No Fault or Negligence for the anti-doping rule violation, the Athlete’s individual results in the other Competitions shall not be Disqualified, unless the Athlete's results in Competitions other than the Competition in which the anti-doping rule violation occurred were likely to have been affected by the Athlete's anti-doping rule violation” (emphasis added).

77. Article 10.1.1 ADR contemplates a situation where an athlete may have competed in multiple Competitions throughout the duration of the Tokyo Olympics and yet return an ADRV in only one of them. While it is not an exhaustive list, certain factors are identified which the CAS ADD might consider in reaching its decision as to whether or not any other results in the Tokyo Olympics might be disqualified arising from the ADRV in another Competition. These include (i) the seriousness of the ADRV the Athlete committed and (ii) whether the Athlete tested negative in other Competitions.

78. There was no evidence put before the Sole Arbitrator that the Athlete had been tested in other Competitions. Therefore, there are no negative tests to consider. In terms of the seriousness of the ADRV, the Parties each made submissions the essence of which is summarised below.

79. The Athlete submitted that the discretion of the Sole Arbitrator should be exercised in his favour so that he could retain his individual 100m sprint results from the Tokyo Olympics on the basis that: (i) he has been tested many times and this is his first AAF, which was the result of him unintentionally taking a Contaminated Product, namely a beta-alanine supplement; (ii) that the supplement he purchased over the Internet was not for the purpose of competitive advantage and it did not identify the Prohibited Substances as ingredients and therefore he was not on notice of the risk of contamination; (iii) his belief that the concentrations of the Prohibited Substances would prove to be very low and his intention to undertake sample batch testing to confirm “the likely provenance of the AAF”; and (iv) that he (and his team-mates) had suffered sufficiently through the automatic forfeiture of his 4x100m relay Silver Medal.

80. The IOC submitted that there should be no exercise of discretion by the Sole Arbitrator and all of the Athlete’s individual results at the Tokyo Olympics including his individual 100m sprint results should be disqualified, based upon (i) the seriousness of the Prohibited Substances, namely two separate SARMs, which are anabolic agents, the standard Ineligibility period for which is 4 years, (ii) the fact the Athlete had competed in 4 races at the Olympic Games before his AAF was returned and (iii) the requirement to uphold the integrity of the Olympic Games and not to disadvantage other athletes who competed without the presence of prohibited substances in their system. In addition, (iv) the Athlete’s age, maturity and education mitigate against his being unaware of the risk of contamination from supplements. The IOC noted the Athlete’s reliance upon the contaminated supplement scenario in mitigation of the seriousness of the ADRV and pointed to the fact that this is a “mere assertion” on the Athlete’s part and the

only evidence provided in support of this (LGC Certificate) does not name the supplement, include a batch number or link the test of the supplement to the actual unnamed beta-alanine amino acid he declared on his DCF.

81. It is a serious matter when an ARDV for the Presence a Prohibited Substance is found to have been committed and more so where it involves non-Specified Substances to which the highest period of Ineligibility for a first offence applies (subject to any proven mitigation permissible under the WADC). In the context of a tournament or a major event such as the Olympic Games where an athlete may have participated in multiple Competitions prior to the ADRV arising, it naturally raises issues with regard to whether the athlete may have had the benefit of the Prohibited Substance for those prior Competitions which is contemplated specifically as a factor in Article 10.1.1. The interrogation of this question which goes to the heart of the integrity of those Competitions, usually involves inter alia scientific evidence and witness testimony – none of which we have at this juncture of the proceedings.

82. However, in assessing the factual circumstances of this case the evidence does demonstrate two key facts. First, on his DCF the Athlete listed the medication and supplements which he had taken over the 7 days prior to the Sample Collection, and this list included ‘beta aleine [sic]’. Secondly, the Athlete submitted in evidence that he consumed a supplement containing betaalanine which he admitted he had been taking “regularly for some time”. The distance in time between the Sample collection following the 4 x 100m sprint relay Final on 6 August 2021 and the 100m Semi-Final on 1 August 2021 was 5 days. By his own admission the Athlete had consumed the supplement he asserts as the likely source of his AAF at the time of his participation in both Heat 7 of the 100m (31 July 2021) and Semi-final 3 of the 100m at the Tokyo Olympics. These circumstances are themselves serious in the view of the Sole Arbitrator but when taken together with the submissions of the IOC (above) raise the level of seriousness even higher and move the Sole Arbitrator to determine that the Athlete’s other results from the Tokyo Olympics, namely in the 100m sprint Competition should also be Disqualified.

83. As a separate argument, the Athlete asserted that the CAS ADD should avoid considering the full facts of the case due to his further prosecution by the AIU/World Athletics. He raised arguments both as to the prejudice and prejudgment any decision by the CAS ADD on the Disqualification of the Athlete’s other Results would have. However, no evidence of any prejudice was articulated or demonstrated by the Athlete and the Sole Arbitrator does not agree that any would arise by the making of the determination in relation to the Disqualification of the Athlete’s other results at the Olympic Games. Independent tribunals established for the purposes of determining anti-doping cases are both obliged and accustomed to reviewing the evidence presented to them and making their own determinations. This is even more so where the subsequent tribunal (in this matter) will have an entirely different scope and function and will hear evidence not put before the Sole Arbitrator due inter alia to jurisdictional constraints.

84. The Sole Arbitrator also wishes to deal with the further argument raised by the Athlete to the effect that the IOC went further than they were permitted or was necessary in their Reply arguments: “… the IOC’s Reply emphasises steps which would be required for a party to establish whether there was any Fault within the meaning of the ADD Rules (Reply, §§26-32). However, this is not relevant nor would it be required for the application of Article 10.1.1 of the IOC ADR”.

85. The IOC did make extensive submissions in relation to the inadequacy of (i) the evidence of ingestion; (ii) the evidence of contamination and (iii) the evidence to assess Fault as provided by the Athlete. It was not necessary for the Sole Arbitrator to consider all of these factors in making her determination within the scope of the CAS ADD jurisdiction under Article 10.1.1. and only those that were relevant were considered. However, had this case been heard by the CAS ADD during the Tokyo Olympics, their consideration would have been very relevant and necessary. Indeed, Article 10.1.1 contemplates such a situation by providing for a mitigation exemption in Article 10.1.2 which would necessitate the CAS ADD considering the issue of Fault on the part of the Athlete, so in this regard the Sole Arbitrator disagrees with the Athlete’s position. The timing of this case is such that considerations as to the Athlete’s Fault will be assessed no doubt by the AIU/World Athletics tribunal to follow.

86. Finally, World Athletics is requested to consider any further action within its applicable Anti- Doping Rules in relation to any sanctions to be imposed upon the Athlete.

IX. COSTS

(…).

X. APPEAL

92. Pursuant to Article A21 of the ADD Rules, this award may be appealed to the CAS Appeals Arbitration Division within 21 days from receipt of the notification of the final award with reasons in accordance with Articles R47 et seq. of the Code of Sports-Related Arbitration, applicable to appeals procedures.